Ah, yes, here we go again, four years later, facing what our president admires and the Democrats decry: the Electoral College. Thus, as Americans — as good citizens — it behooves us to take still another look at it, swallow whatever joy or dismay we may feel, and deal with it as best we can.
I will attempt to set down on paper here in four short (relatively) articles, an overview that will cover, in turn: What is this Electoral College of ours? How did it happen to come about? What has it done to us? Ought it to be changed and, if so, how?
So, then, what is this Electoral College?
Well, first of all, it is no “college” at all. It is, instead, a group of people appointed state by state in whatever manner each state legislature directs, who, in turn, determine, by majority vote, the person who shall be the president of the United States.
Specifically, what has become known as the Electoral College, was created by Article II, Section I of our Constitution, as modified and changed by Amendment XII (ratified on June 15, 1804), Amendment XX (ratified on January 23, 1933), and Amendment XXIII (ratified on March 29, 1961). Putting this all together, this is what we have now:
1. Each state shall “appoint”;
2. In such manner as its state legislature directs;
3. A number of “electors”;
4. Equal to the whole number of its representatives in Congress plus its two senators (Thus, Maryland, for example, now has 10 electoral votes — eight members of the House plus its two senators). In addition, the District of Columbia has been granted the electoral votes of the least populous state (three);
5. And the electors shall meet in their own states at a uniform time as set by Congress;
6. Where they shall cast their ballots separately for president and vice president; and
7. The candidates who receive a majority of those votes shall become president and vice president, respectively.
There are now 538 Electors, a number reached by adding 435 voting members of the House, plus the 100 senators, plus the three votes granted to the District of Columbia. Thus, it takes at least a 270 electoral vote majority to elect a president.
Even though there is no requirement to do so, every state provides that its electors are to be selected by popular vote, and, except for Maine and Nebraska (which apportion their votes), every state has decreed that all of its electors shall vote as the winner of its popular vote decides; i.e., winner takes all.
And so it is that under our electoral system, the idea that all American citizens have the same voting power utterly disappears. Thus, California, with its 55 electoral votes, has 60 times the population of Vermont, with its three electoral votes. Therefore, each Vermont voter’s presidential vote is worth three and a half times that of each California voter. The inescapable truth is that all citizens living in large population states are severely penalized in the selection of our president.
The disparity in voting equality is far worse if an election results in no candidate winning a majority of the electoral votes. In that eventuality (which could — and has on occasion — come about when more than two viable candidates are in the race), our Constitution provides that the presidential selection is sent to the House of Representatives, which is to vote among the top three electoral vote candidates. But the voting in the House is unique: It is not congressman by congressman, but, instead, it is state by state. Each of our 50 states gets one vote, and that vote is determined by a majority of its congressman. If the state’s congressional delegation vote ends up in a tie, that state does not vote. The winner is the candidate who wins the votes of 26 states.
Under this system, again using Vermont and California as examples, each state has an equal one vote voice in the election, and thus the weight of a Vermont citizen’s presidential vote becomes 60 times that of a citizen of California. To put all of it into perspective, 26 states representing less than 16 percent of our nation’s population, could elect our president.
Under our current system, the failure of any presidential candidate to receive a majority of the electoral votes will also result in a similar electoral failure by any vice-presidential candidate. However, unlike the presidential selection, the Constitution provides that, in that case, the selection of the vice president will be made between the two top candidates by the Senate, voting as it normally does.
None other than Thomas Jefferson, when contemplating this system in 1823, stated:
“I have ever considered the constitutional mode of election ultimately by states as the most dangerous blot on our Constitution, and one which will someday hit.”
And so we come to the question: How in the world did this all come about? That will be addressed in my next article.
Sherwin Markman, a graduate of the Yale Law School, lives in Rock Hall, Maryland. He served as an assistant to President Lyndon Johnson, after which he was a trial lawyer in Washington, D.C. He has published several books, including one dealing with the Electoral College. He has also taught and lectured about the American political system.